Ziccarelli & Martello is a law firm of six attorneys and eleven staff members representing people in the following types of cases:

Personal Injury  |  Workers' Compensation  |  Social Security Disability  |  Family Law  |  Criminal Law

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personal injury

Nursing Home Negligence

The firm has an excellent reputation in representing individuals who are injured in automobile accidents, construction site accidents or in any other situation where injures are the fault of another party. The firm has obtained settlements and verdicts including small cases up to verdicts and settlements in access of $1 Million Dollars. The firm takes great pride in representing individuals in small cases or large cases in an aggressive and competent manner.

nursing home negligence

Do you have a parent or family member living in a nursing home? Has he or she suffered from bed sores? Has he or she been injured because of a fall?

Your loved one might be a victim of nursing home abuse.

As the population ages, the nursing home population is rising. Many of us have or will have to place a loved one in a nursing home. When we do so, it is always with the expectation, and often the express promise, that the nursing home will render compassionate, professional and adequate care
Unfortunately, no matter how thoroughly we investigate a nursing home before placing a loved one in it, abuse or negligence can occur. All too often, loved ones are neglected and even abused. Often this mistreatment is hard to discover. Many times when an injury or death occurs in a nursing home, the explanation given is that there was nothing that could be done, the person was already sick and would have died anyway. However, the nursing home industry is a multi-billion dollar business and comprised of major corporations. Some nursing homes act as warehouses for the elderly rather than providing adequate skilled nursing services. In light of these facts, you may want to look beyond the nursing home’s initial explanation if your loved one has died suddenly in a nursing home.

Nursing home abuse can include physical abuse, verbal abuse, sexual abuse, emotional abuse and financial abuse. Some of the more common signs of abuse or neglect include:

• Unexplained injuries
  
• Open wounds, cuts, bruises, welts or burns
  
• Dehydration
  
• Signs of physical or chemical restraints
  
• Bed sores
  
• Withdraw or isolation
  
• Loss of weight
  
• Frequent infections
  
• Frequent falls
  
• Persistent bad odor
  
• Missing funds or unexplained financial transactions

At Ziccarelli & Martello, we want to help you protect your loved ones and put a stop to nursing home neglect and abuse. If you believe that a loved one has been neglected or abused, don’t wait – seek help as soon as possible.

If you are concerned about the health or safety of a parent or family member in a nursing home, take action. Those affected by nursing home neglect and abuse are the elderly and infirm. Often the victims of nursing home abuse are weak, scarred, or intimidated and least able to fend for themselves. In some cases, fear and repercussions may even prevent victims of abuse from telling their family members that they are not being treated properly with dignity and respect.
Don’t rely on government oversight of nursing homes – it is unreliable. Don’t rely on the nursing home to police themselves – they do not always honestly report neglect or abuse to authorities or families.

If you have a parent or family member who is a resident in a nursing home and you believe that your loved one has been neglected, mistreated, or abused, seek help as soon as possible. The investigation and preparation of a nursing home case is often time-consuming and in Ohio, the statute of limitations may be only one year. Please do not hesitate to contact us for a free discussion about the rights of your loved one.

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workers' compensation

We have represented thousands of individuals in workers’ compensation cases throughout the state of Ohio. Our attorneys have many years of experience in representing individuals before the Ohio Bureau of Workers’ Compensation and the Industrial Commission of Ohio. We also handle many workers’ compensation cases that are appealed to Common Pleas Court.

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social security disability

We have over 30 years of experience in representing claimants who have been denied disability benefits before the Social Security Administration including appeals before Federal Administrative Law Judges, the appeals counsel in Washington, D.C. and in Federal District Court. Call us for a free evaluation of your case. We also represent individuals in PERS claims, Long Term Disability claims, Longshoreman (Jones Act) cases, Medical Malpractice cases and Railroad (FELA) cases.

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family Law

DISSOLUTION

If you are contemplating ending your marriage, you may wish to do so without unnecessary disruption, antagonism, or conflict. You have seen other couples wishing to divorce end up in protracted court proceedings that take years and end up costing thousands of dollars. You have to ask yourself, is it possible to end your marriage amicably?

At Zicarrelli & Martello, we understand your concerns and apply our experience and knowledge of Ohio divorce law to help avoid the hostility in the divorce process.

A dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party has to prove grounds to end a marriage by dissolution. This action is only started after the husband and wife have reached a separation agreement regarding all property, spousal support and any child issues. After jointly filing a Petition for Dissolution, the parties must wait at least 30 days before the court will hear their case. The case must be heard within 90 days of filing. At the hearing, the court will review the separation agreement, ask about the assets and liabilities and any parenting issues, and determine whether the parties understand and are satisfied with the settlement. If the court is satisfied that the agreement is fair, the parties agree and desire to end their marriage, the court will grant a dissolution and order the separation agreement into effect.

If you and your spouse are considering divorce and you believe that matters related to property division, child custody and support can be settled without difficulty, a dissolution of marriage will probably be the best option for you. Please call one of the attorneys at Ziccarelli & Martello for a free initial consultation.

DIVORCE

Sometimes, despite the fact that you may wish to settle matters with your spouse quickly and amicably, it is not simply possible. At Ziccarelli & Martello, we understand that sometimes circumstances necessitate taking legal steps to protect the well-being of your children and your ability to enjoy a standard of living you have grown accustomed to. Securing knowledgeable, experienced attorneys makes all the difference when it comes to protecting your rights.

The numerous issues that present themselves in divorce cases can be overwhelming. At ZM, we work closely with clients to identify your concerns and objectives. Speak with one of our lawyers about the following matters related to your divorce:

• Child Custody and Support
  
• Visitation Rights
  
• Spousal Support
  
• Property Division

At Ziccarelli & Martello, our clients come to us during the most difficult times in their lives. Our clients are looking for attorneys who will fight to protect their rights and the rights of their children. We are trial lawyers, and as such, we believe in thorough case preparation. Our commitment and dedication puts us in the best position to negotiate on your behalf, and if necessary, go to trial. We will guide you every step of the way through the divorce process, ensuring that you understand what will happen next so that you can make informed decisions. When you need an attorney you can trust to fight for you, contact the attorneys at ZM.

CUSTODY AND VISITATION

At Ziccarelli & Martello, we understand that nothing is more important than your children. We work diligently with clients to craft parenting orders and visitation plans that work. We understand that plans need to be flexible enough to deal with the changes and alterations that occur daily in our busy schedules. We understand that plans must allow children ample time with each parent.

Procedures for dividing parental rights and responsibilities now emphasize the rights of the child to be loved, protected and supported, while maintaining relationships with each of the parents, despite difficulties the parents may have with each other.

Every parent has certain rights and responsibilities for the care of the children by virtue of being a parent. When parents divorce, these rights and responsibilities are even more important. The court's role is to ensure that the "best interest" of the children is protected. Therefore, the parental rights and responsibilities are expressly allocated to the parents.

A court has two basic options in allocating parental rights and responsibilities: adopting a plan for shared parenting (formerly called joint custody), or naming one parent the residential parent and legal custodian. At times, when the parents' disagreement is considerable, the court may seek additional information and guidance from a guardian ad litem (a neutral person appointed by the court to protect the children's best interest), court investigators or social workers, and, if either parent requests it, by interviewing the children.

In shared parenting, the parents "share" the parental rights and responsibilities according to a shared parenting plan. One or both parties will submit a proposed plan to the court; the division of the children's time between the parents need not be equal. The court reviews the plan(s) to determine if it is in the children's best interest. The court may then adopt the plan, ask the parties to amend the plan and adopt it as amended, or reject the plan. The parties may revise the plan to address the court's objections, or the court may reject shared parenting completely and name one parent the residential parent and legal custodian.

Naming one parent the residential parent and legal custodian does not exclude the other parent from all parental rights and responsibilities. Nonresidential parents have numerous rights, including regular parenting periods, involvement in the children's school activities, access to the children's school records, and notification before a residential parent moves to a new residence with the children. Nonresidential parents usually are responsible for supporting their children by paying child support and a share of the medical expenses. The parent who has the most cost-effective health coverage will be ordered to carry the children's health insurance.

In every case involving children, the primary consideration is the best interest of the children. Ohio statutes provide many factors to be considered in making the determination. If your child is old enough to make good decisions, his or her choice of parent will be given some consideration by the court, but the ultimate custody determination depends upon an evaluation of other numerous factors. However, if a parent is struggling with a drug, alcohol, or pornography addiction, a psychological evaluation may need to be scheduled to ensure the children are in the best living situation. The courts will also look at various other factors, including:

• Relationship of the child with each parent
  
• Geographical location of each parent
  
• Home environment
  
• Health and safety of the child
  
• Mental and physical health of all parties
  
• Time spent with siblings;
  
• Criminal records

Courts look favorably on the parent who is willing to facilitate close relationships for their children and his or her former-spouse. This shows the spirit of cooperation that is a fundamental component of “shared parenting.”

CHILD SUPPORT

Child support is the financial contribution one parent makes to another for the support of their children. Child support may be ordered in divorces, dissolutions, legal separations and actions to establish paternity. It is ordered by the court or established by agreement of the parties in an amount that should allow the child to enjoy the standard of living he or she would have enjoyed had the parents remained married.

In general, the “non-residential” parent pays child support to the “residential” parent (the parent with whom the child lives). In shared parenting plans, the amount of support may be reduced according to the amount of time the child spends in each parent’s home, if there is a near-equal division of that time.

Ohio law requires that the amount of child support must be determined by a certain procedure. The law sets basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents, as well as other factors and/or credits. The support schedules are based on the average cost of raising children in households across a wide range of incomes.

To determine the appropriate amount of child support, the court calculates each parent's gross income. The gross incomes are combined and the total is used to locate the proper amount on the basic support chart. Any spousal support paid is added to the income of the recipient and deducted from the income of the payor to arrive at gross income. Costs of medical insurance and necessary child care are factored in, and the resulting child support obligation is divided according to the percentages of each party's income to their total combined annual income.

The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate from the basic support tables where applying basic support would be inequitable. The court also will issue orders for the children's medical needs, including insurance. Child support must be paid to the designated support enforcement agency, which usually orders the employer to deduct that amount from wages.

AT ZM, our attorneys know that issues involving child support do not end once an agreement is reached or a court renders a decision. If a party fails to pay support as ordered or agreed, that party may be held in contempt. Chronic non-payment could result in felony charges against the party failing to provide support.

Also, in the years following divorce, events and circumstances change that can affect child support arrangements. Sometimes, one of the parties may lose a job, obtain a new and better paying job, or develop severe health issues. These changed circumstances may require a modification of child support. As family law attorneys, we have handled hundreds of such many post-decree modifications based on a variety of situations.

SPOUSAL SUPPORT

While calculating spousal support may seem straightforward, several factors influence and determine the amount to be paid or received. Securing an attorney to help you comprehensively address these factors can help ensure that matters are handled accurately.
At the law firm of Ziccarelli & Martello, we address these factors as well as examine the important tax considerations related to spousal support. These factors include:

• Respective Incomes
  
• Earning ability
  
• Relative education
  
• Age, physical, mental and emotional health
  
• Length of marriage
  
• Standard of living
  
• Parenting arrangements
  
• Contribution of each party to the education, training or earning ability of the other party
  
• Time and expense necessary for a spouse to acquire education and training
  
• Total assets and liabilities
  
• Tax consequences for spousal support

At ZM, we know that it is critical to understand the tax implications associated with spousal support. Typically, payment of spousal support is tax-deductible, while receipt of support is considered taxable income. This is not true with child support. For further information regarding taxes and spousal support, do not hesitate to speak with one of our family law attorneys.

PROPERTY DIVISION

At Gibson Ziccarelli & Martello, w know that several considerations influence how your marital assets and property are divided. Most people understand that the property you bring into a marriage is your own. However, the commingling of assets during the course of your marriage can make property division complex. Rely upon the attorneys at ZM to assist you in determining a property division plan that is fair and protects your interests.

Marital property is property acquired during the marriage, including real estate, personal property or intangible property such as stocks and bonds, bank accounts and retirement plans. Marital property also may include increases in the value of separate property due to either spouse's work effort, labor or contribution of marital money to the increase in the property's value. Separate property includes all real, personal and intangible property from an inheritance; property owned before the marriage; income or appreciation from separate property not resulting from the labor or substantial effort of either party during the marriage; a gift after the marriage date that is proved to be made to only one spouse; and an award for personal injury, except any part of the award that compensates for lost wages occurring during the marriage, or medical bills from the injury paid with marital funds.

By applying the statutory rules and appropriate case law, the court determines what is and what is not marital property. The marital property is to be divided equally, unless the court explains in writing why an equal division would not be fair. In making the award, the court must apply the eight specific factors listed in the statute and any other factor it finds relevant and equitable.

The court also has the authority to make a distributive award from separate property of either party to the other to achieve a fair result. When a party has engaged in financial misconduct such as hiding property, dissipating money or funds, or disposing of funds fraudulently, the court may make an award out of the separate property of the offending spouse or make a greater award of marital property to compensate the other party.

Our attorneys put their experience of handling family law and complex asset division to work by helping clients understand property division and arrive at an equitable distribution of marital assets and liabilities. Call us today.

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criminal Law

At Ziccarelli, & Martello, we know that any criminal charge can have serious implications for your security and freedom. Many criminal charges are forced upon defendants who lack adequate defense, leading to more severe penalties, including longer jail sentences and excessive fines. Regardless of the charges you are facing, you need strategic and aggressive representation. Call us right away.

UNDERSTANDING THE CRIMINAL PROCESS

All criminal cases—whether misdemeanor or felony—follow certain basic procedures in the Ohio criminal court system. The attorneys at ZM know the process and can guide you through it to minimize the disruption to your life and freedom.

ARREST

Most criminal prosecutions commence upon the arrest of the accused (or the Defendant). Most often the arresting agency is a city police department, or, in the case of a federal prosecution, one of the federal agencies such as the FBI, the DEA or the IRS. These agents usually have the discretion to detain the defendant until a court can set a bond, or these agents can release the defendant upon the defendant's own recognizance. However, just because a person has been arrested does not mean the arresting agency will actually charge the person. The decision to charge the person is usually made by the arresting agency consulting with the prosecuting attorney.

ARRAIGNMENT

After the defendant has been arrested, he must be arraigned. Arraignment is the first official court action against the defendant. The legal purpose of an arraignment is to officially read the charge to the defendant, to permit the defendant to enter a plea (e.g. guilty, not guilty or no contest) to the charge, and to have the court set a bond. If the defendant is in custody, the arraignment must take rather quickly. In Ohio, the judge has the ability to set a number of types of bonds and conditions for pretrial release. The purpose of the bond is to assure the attendance of the defendant at his trial. The judge can set (i) a cash bond, (ii) a cash/surety bond, (iii) a ten percent bond or (iv) a personal bond. A cash bond requires the defendant to post the entire cash amount set by the judge. A cash/surety bond requires the defendant to either post the cash amount or utilize the services of a bondsman. If the defendant has sufficient collateral and does not appear to be a flight risk, a bondsman will post a promissory note with the court (on behalf of the defendant) for the full amount of the bond. In return, the bondsman is paid a one-time fee equaling approximately ten percent of the set bond amount - a fee which the bondsman keeps forever. A ten percent bond requires the defendant (or a family member or friend) to post just ten percent of the bond with the court, with the other 90% to be due to the court if the defendant fails to appear for trial. If the defendant appears for all court proceedings, the defendant will be entitled to the ten percent back from the court. A personal bond does not require the defendant to pay anything to a bondsman or to the court, and assumes that the defendant, basically on his honor, will appear for all portions of the court process.

PRETRIAL

Most, but not all, judges will set what is called a "pretrial" in the criminal prosecution process. The use of the word "trial' in the term "pretrial" is technically misleading in that there is really no official court proceeding at all. A pretrial is basically just an informal meeting between the prosecutor and the defendant's attorney to discuss the facts of the case and a possible plea arrangement. In almost all cases, the defendant must be present on this court date. If the prosecutor and the defense attorney reach a plea arrangement, the judge will go on the bench and officially take the plea and, in most cases, refer the defendant to the appropriate probation department for a pre-sentence investigation. However, if the judge chooses to do so, he may sentence the defendant immediately after the plea.

MOTION HEARINGS

Depending on the type of charges involved in your case, there are a number of different types of motions that can and should be filed with the court. Some involve issues related to identifying you as the alleged perpetrator of the crime. Some involve trying to exclude (suppress) evidence that the prosecutor wants to use to convict you. Still others involve obtaining evidence that would prove your innocence that the prosecutors don’t want you to obtain.

You and your attorney, along with the prosecutor, appear before the judge and each side presents its legal and factual arguments as to why each deserves to win on the issues contained in the motion filings. Generally, witnesses are sworn in and present their version of what actions occurred that led up top your arrest and the filing of charges. These hearings provide an opportunity to assess the strength of the government’s case, and to evaluate the likelihood of prevailing at trial before a jury.

TRIAL

If the defense attorney and the prosecutor are unable to reach a plea arrangement, the defendant will have to take his chances at trial. The defendant can chose whether he wants a jury trial or a bench trial. A bench trial is where there is no jury and the judge renders the verdict (as well as controls the trial process). In Ohio, a jury trial in a state prosecution consists of twelve jurors. All twelve jurors must reach the exact same decision in order for there to be a "verdict." The prosecution will present the prosecution's case first (often referred to as the prosecution's "case-in-chief"). They will do so primarily through the testimony of witnesses and the admission of exhibits. The defense attorney will be able to cross-examine each of the prosecution's witnesses and will challenge the admission of certain exhibits into evidence. After the prosecution has presented its case-in-chief, the defendant will present his case (often referred to as the "defendant's case"). The defendant will also present his case through testimony of witnesses and the admission of exhibits. As with the prosecution's case-in-chief, the prosecutor will be able to cross-examine the defendant's witnesses and will challenge the admission of certain defense exhibits. All of the witness testimony and admission of exhibits are strictly controlled by a specific set of rules (which the judge, the prosecutor and the defense attorney will know from experience and study). The length of the trial depends entirely upon the type of case involved. Some cases can take less than a day while others can take months.

SENTENCING

In a state prosecution, in the event the defendant is convicted after a trial, or in the event the defendant enters a plea to a reduced charge, the court will have the option of either (i) sentencing the defendant right away or (ii) ordering a pre-sentence investigation and setting the sentencing for a few weeks later. Sometimes the defendant, the prosecution and the judge, as part of a plea arrangement, have all agreed to a specific sentence, and that sentence will (usually) be imposed right after the plea. If the judge orders a pre-sentence investigation, the presentence investigation will most likely be completely conducted by the appropriate probation department. The probation department will in almost all instances prepare a written report for the judge and (usually) the defense attorney to read. On the sentencing date, the defense attorney will highlight the good points of the report and will dispute the bad points. The judge will then render the sentence. The judge can order the defendant to serve time in prison, or the judge can place the defendant on what is commonly referred to as "probation."

Under a new set of sentencing laws which went into effect in July of 1996, the trial judge has the ability to set a wide range of a sentence, and can further order that the defendant be on "post-release control" (i.e. probation) for a period of time after the sentence is over. Further, under the new law, the length of the defendant's sentence can no longer be cut back by the prison officials if the defendant/inmate exhibits "good behavior" (under the old law this was referred to as "good time"). Instead, the defendant/inmate's sentence can actually be increased if the defendant exhibits bad behavior (under the new law this is referred to as "bad time").

WHAT ARE YOUR RIGHTS IF STOPPED BY THE POLICE?
 
Suppose you are outside your home or in a public place when the police arrive and begin to ask questions. Law enforcement officers have a duty to protect the community they serve, its citizens and their property. The law gives police certain powers to help them perform that duty.

They have the power to approach persons and ask them questions. Simply because you are approached and questioned by the police does not mean you are suspected of having committed a crime. All citizens are encouraged to cooperate with the police to see that those who break the law are brought to justice, and the police rely on law-abiding citizens to do so. But you are not required to incriminate yourself. YOU MAY REFUSE TO ANSWER ANY QUESTION IF THE ANSWER WOULD TEND TO INCRIMINATE YOU.

Suppose you are walking down a street when a police officer confronts you and announces: "Stop. I need to ask you some questions." A person is "stopped" when an officer uses enough force, or a show of authority, to make a reasonable person feel he or she is not free to leave. In this example, the officer called out for you to stop, and may have used his or her authority to make you do so. If the officer pulled out a weapon or used a threatening tone of voice, it would be even clearer that a stop has taken place. Because the officer is interfering with your liberty to move about, he or she should first have a reasonable suspicion that you have been involved in a crime. This suspicion would need to be supported later (if the matter should wind up in a court) by the officer's reference to specific facts prompting such a suspicion.

The police do not have to tell you that you are a suspect or that they intend to arrest you, but if they use force or a show of authority to keep you from leaving, it is likely they consider you a suspect. They may consider you a suspect even if you were the person who called the police. If they read or tell you your Miranda rights, they suspect you have committed a crime.

Just as when an officer merely approaches and questions you, you have the right, if you are stopped, to refuse to answer any questions if the answer would tend to incriminate you. Also, if you are only being stopped, you can refuse to allow an officer to search your person.

Further, anything you say can be used as evidence against you. Sometimes people think that what they are saying won't incriminate them, when in fact, what they say provides a link in a chain of information that could incriminate them.

Even if you believe the officer has no grounds to stop and question you, do not argue with or resist the police. Arguing or resisting the police will not help you; it may increase your chances that the police will arrest you and bring criminal charges against you. It probably also will give them grounds to bring even more criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged. Once officers no longer have grounds to detain you, they should tell you that you are free to go before asking if they can search you or your car.

Your rights are different once you are placed under arrest. An arrest is different from a stop. A stop involves brief questioning in the place where you were detained. If the officer wishes to hold you for a longer period of time, or decides to take you elsewhere, such as to the police station, he or she is no longer just stopping you, but is arresting you. Because an arrest deprives you of your freedom of movement for an even longer period of time than a stop, the law limits the instances when arrests can be made.

WHEN CAN YOU BE ARRESTED?

1. You may be arrested by a police officer who personally saw you violate any state statute, city ordinance or federal law. The law may be a serious crime (a felony) or a lesser offense (a misdemeanor). The important thing is that the officer sees the violation.
   
   If the charge is a minor misdemeanor in which only a fine is the possible penalty (not time in jail), the officer may not arrest you and take you into custody unless you fail to give your name, refuse to sign the citation, or have previously failed to appear in court or pay a fine on a similar offense.


2. You may be arrested for a felony, even if the police officer did not personally see you commit the felony, so long as the officer had probable cause to believe you committed the crime. Later, the court system (not the police) will determine if the officer's belief was reasonable and if you are guilty or innocent.


3. You may be arrested when there is a warrant for your arrest, whether or not you are aware of the warrant. The police cannot cancel an existing warrant. They must serve it and arrest the person named on the warrant.

An arrest warrant is a legal document, issued by a judge or a clerk of the courts, directing the police or the sheriff to arrest you and take you into custody. This document does not have to be on any particular form. The arresting officer is not required to have the warrant in hand at the time you are arrested. The officer must show the warrant to you within a reasonable time after you are arrested and give you a copy. If the officer fails to do so, tell your attorney later.

Even if you believe the officer has no grounds to arrest you, do not argue with or resist the police. You have no right to argue about why you are being arrested or about your guilt or innocence at the time of the arrest. Arguing or resisting the police will not help you. It will mean the police can bring additional criminal charges against you, and it may make it harder for you to get out of jail on bail if you are charged.

WHAT ARE YOUR RIGHTS IF ARRESTED?

1. If an officer wants to ask you questions other than your name and address, he or she must advise you that you have a right not to answer the questions.
   
   
2. You have the right to be told why you are being arrested and the nature of the charges against you (the crime for which you are being arrested). If you are arrested on a warrant, you have the right to see the warrant within a reasonable time after your arrest, to read it and make certain your name appears on it, and to see the charge against you.
   
   
3. You have the right to be told your constitutional rights (commonly called Miranda rights) before you are questioned—not before you are arrested. We’ve heard these rights being read so many times on television that we know them by heart.

   These constitutional Miranda rights are:

   • The right to remain silent and not answer any questions at all;
   • The right to know that if you waive (give up) your right to remain silent and do answer questions, the police can use your answers against you in a court to get you convicted;
   • Even if you begin to answer questions, you have the right to stop answering questions at any time and to speak with an attorney;
   • You have the right to speak privately with an attorney before you answer any questions or sign anything;
   • If you cannot afford an attorney and if the crime for which you have been arrested has jail time as a possible penalty, you have a right to have an attorney appointed for you to represent you at no cost to you before being questioned, and to have that attorney present with you during any questioning to which you may later agree to submit.

Remember, you cannot be penalized for refusing to answer an officer's questions. If you try to cooperate by answering questions while you are being held in police custody, you may create difficulties for your lawyer in defending you later on. ALWAYS SPEAK TO A LAWYER.

You also have the following rights:

• The right to contact, by telephone or otherwise, a responsible person, to tell him or her you have been arrested and what the charges are. You are not limited to one telephone call if more calls are needed to contact someone.
  
  
• The right to refuse any physical or chemical test (such as a polygraph "lie detector," breathalyzer, intoxilizer, field sobriety tests or physical performance tests such as walking a straight line or making other movements, the look-at-the-pen test, or mental ability tests like reciting the alphabet or doing math), until you can talk to your lawyer.
  
  
• The right to have your attorney present at any line-up or other identification procedure in which you are viewed by possible eyewitnesses to a crime.
  
  
• The right to reasonable bail or bond to secure your release from jail unless you are charged with a capital crime. Usually a judge sets the bail or conditions of your release. If you are charged with a misdemeanor, and if no judge is available, the police may, at police headquarters, accept bail in accordance with rules established by the judge.
• The right to be brought before a court as soon as is reasonably practicable after your arrest, so that you can request a preliminary hearing to test the basis of your arrest and/or trial to determine your guilt or innocence.

 

WHAT WILL THE POLICE DO WHEN YOU ARE ARRESTED?

If you are arrested, the police will search you for weapons, handcuff you, transport you to jail, and photograph and fingerprint you for identification.

If you are not under arrest or if police do not have a search warrant (a court order allowing them to search), the police may ask you to allow them to search your car, your home and/or your other possessions. YOU CAN REFUSE TO CONSENT TO THESE SEARCHES.

You have a right to be free from unreasonable searches and seizures; most of the searches for which an officer might ask your consent would require the officer to first obtain a warrant from a judge, unless you consent and give up this right.

Only a judge can decide whether the search is proper before that search is conducted. There is no penalty for exercising your right to have the judge decide whether to allow the search. Your refusal to consent to a search cannot be used against you.

If you are uncertain about how to respond to any request made by an officer, assert your right to counsel and discuss it with your attorney first before taking further action on the officer's request.

WHAT TO DO DOING ARREST

Do not argue with the police. You cannot talk your way out of being investigated, arrested or prosecuted. Do not try. Any explanation you give the police may give them more information than they already have, so it's often wise to save your explanation and defenses for court.

If you have been arrested, the police believe you committed a crime. Their job is to investigate and gather evidence. Telling the police your side without a lawyer present is usually a bad idea, even if you believe you have done nothing wrong. Only your attorney and the judge have the power legally to make things easier/better for you.

Always pay very close attention to what happens when you first encounter the police and afterwards. Try to memorize who was there to see and hear what happened. Sometimes the court needs to look into what happened to you while you were in custody. It will help you if you can later fully inform your counsel about these events, so be observant.

Do not tell your family and friends all about it or ask non-lawyers for legal advice. It is possible, if not probable, that they may be ordered to appear at trial to repeat what you said.

Rely on your lawyer to advise and defend you no matter what you did or did not do. Legal ethics rules prohibit your attorney from disclosing without your permission any information you give him or her during the attorney-client relationship. However, your attorney may disclose your intention to commit a crime and the information necessary to prevent the crime. Also, your attorney has an ethical duty to keep you from offering testimony that he or she knows is not true.

WHAT ARE YOUR RIGHTS IN COURT?

Within 72 hours after your arrest, the judge must:

1. Tell you the crime of which you are accused and explain it to you if you do not understand it.
   
   
2. Give you a copy of the written complaint against you if you do not have one already.
   
   
3. Give you a continuance (more time) to get an attorney, or appoint one for you if there is a possibility you could go to jail if convicted and you can't afford to pay an attorney to help you.
   
   
4. Tell you the nature and effect of the pleas you may enter and what will happen if you enter them. You may enter a plea of not guilty, no contest or guilty.

Not guilty means you do not give up any of your rights, including the right to a trial. If you are in doubt, plead not guilty.

No contest means you admit the facts in the complaint are true, but you deny guilt. The judge may find you guilty or not guilty. (A no contest plea cannot later be used against you in a civil lawsuit for money damages. If someone sues you over the incident, he or she will have to prove you were at fault and violated the law.)

Most no contest pleas result in a guilty finding unless the arresting officer has cited you under the wrong statute or ordinance, or if the arresting officer's written statement of facts fails to sufficiently support the charge.

Guilty means you admit the crime(s) of which you are accused and waive (give up) your right to a trial at which the prosecution would have to prove you guilty beyond a reasonable doubt. You also give up your right to remain silent. The judge may sentence you immediately or at a later hearing. A guilty plea can later be used to prove you were at fault in a civil lawsuit. A guilty plea to a charge can also lay the basis for a harsher punishment if you are later convicted of another offense.

You are entitled to have a record made by a court reporter or tape recorder of what has happened in the courtroom. Then, if a question later arises, you have evidence of what happened when you were in court.
 

OVI – THE BASICS

If you or a loved one are arrested for operating a vehicle while intoxicated or under the influence, you may need the assistance of an experienced OVI defense lawyer. Unlike civil law cases, in which money or property may be at stake, people charged with OVI may face jail time and driver's license revocation. These penalties could end up costing you your vehicle, your job, and even your marriage. The attorneys at Ziccarelli & Martello have experience defending these cases and will evaluate all the evidence, including the procedure and results of any field sobriety and chemical tests, to ensure that your legal rights are protected.

In Ohio, it is unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

• The driver's ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or,
  
  
• The driver is intoxicated at a level above established OVI standards, such as blood-alcohol concentration (BAC) of. .08.
  

Field Sobriety and Chemical Tests

When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a "field sobriety" test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.

Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person's physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer's use of the "horizontal gaze nystagmus" (eye and penlight) test.

Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver's blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of OVI to choose which type of chemical test is administered.

Refusing a Chemical Test: "Implied Consent" Laws

Ohio has an "implied consent" law that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of OVI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to OVI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver's license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after OVI test failure.

“Per Se" and "Zero Tolerance" DUI Laws

All states have OVI laws that deem "per se intoxicated" any driver with a blood-alcohol concentration (BAC) above a set limit. In Ohio, this means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

Keep in mind that a driver may still be arrested and convicted for OVI without proof of "per se" intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of OVI if an arresting law enforcement officer testifies that he observed the driver's vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.

OVI Convictions: Criminal Penalties

A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each offense thereafter. Severity of criminal penalties will vary according to the circumstances of the offense, including:

• Whether the driver has a history of OVI violations;
  
  
• Whether the driver was operating a commercial vehicle at the time of the OVI;
  
  
• Whether the OVI violation occurred while there was a child in the vehicle;
  
  
• Whether the OVI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
  
  
• Whether the OVI violation involved a car accident in which property damage occurred;
  
  
• Whether the OVI violation involved a car accident in which another person was injured or killed; and,
  
  
• Whether the driver was under the legal drinking age at the time of the OVI violation.

OVI Driving Privilege Penalties

In addition to potential criminal penalties, a OVI arrest or conviction will have an immediate negative impact on driving privileges.

Ohio law allows the BMV to immediately suspend the driver's license of any person operating a vehicle with a BAC above the state limit for intoxication, or any driver who refuses to submit to BAC testing. The driver's vehicle may also be confiscated or impounded, and the OVI offender will likely incur significant administrative costs. This loss of driving privileges can normally occur even before a OVI conviction. An OVI arrestee may attempt to obtain a temporary license and request an administrative hearing at which he or she may argue against license suspension, or for restoration of limited driving privileges.

As with criminal penalties, the impact of a OVI arrest or conviction on driving privileges will vary according to the driver's history of OVI violations and the severity of the offense. An increasingly popular OVI penalty, especially for repeat offenders, is mandatory installation of an "ignition interlock" device on the offender's vehicle. This breath-testing device measures the vehicle operator's BAC, and will prevent operation of the vehicle if more than a minimum amount of alcohol is detected, such as BAC level of .02. Where this punishment is utilized, most states require the OVI offender to pay costs of installation, rental, and maintenance of the ignition interlock device. Rental fees alone can amount to as much as three dollars per day, so a OVI offender's expenses can add up quickly when an ignition interlock device is required.

Plea Bargains in OVI Cases

Due to recent law enforcement trends that focus on preventing OVI by penalizing offenders harshly, most district attorney offices refuse to negotiate plea bargains in OVI cases. This is especially true if evidence of the violation is strong... However, in rare cases a OVI charge may be reduced to a lesser offense like reckless driving or an "open beverage" violation.

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